Samson Patrick @ Thomas vs Republic (Criminal Appeal No. 463 of 2021) [2024] TZCA 1294 (19 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA CRIMINAL APPEAL NO. 463 OF 2021 SAMSON PATRICK @ THO M AS .............................................. APPELLANT VERSUS THE REPUBLIC ....................................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Geita) (Rumanvika. 1 .) dated the 25th day of March, 2021 in Criminal Appeal No. 1 of 2020 JUDGMENT OF THE COURT 29th Nov. & 19th Dec. 2024 MGONYA. J.A.: Samson Patrick @ Thomas, the appellant, is currently serving a term of thirty (30) years' imprisonment following his conviction by the Resident Magistrates' Court Geita, where he was charged with two counts. On the first count, he was charged with the offence of rape contrary to section 130(1) (2) (e)and 131(1) of the Penal Code, Cap. 16; and the second count was, impregnating a secondary school girl contrary to section 60A (3) of the Education Act, Cap. 353, as amended by section 22 of the

Written Laws (Miscellaneous Amendment) (No. 2) Act No. 4 of 2016 (the Education Act). His appeal before the High Court (0. F. Bwegoge - SRM with Extended Jurisdiction) was partly allowed on the first count of rape, while the conviction and sentence on the second count was upheld. Still aggrieved, he is before the Court on a second appeal. The prosecution's case as it appeared before the trial court, was as follows: Between February and 18th March, 2019, the victim, Mektilda Simon Lufungulo (PW1) met the appellant at Ludete area within Katoro Township. That, the appellant seduced her and she accepted. Thereafter, they had sexual encounters which resulted into PW l's pregnancy. It was PW l's testimony that, due to frequent sickness thereafter, she was sent back home from school in May 2019. Lucia Misalaba (PW2) the victim's mother testified that; she noted morphological changes on the victim's body as her breasts became fuller than normal. She suspected her to be pregnant, hence, she took her to the hospital for medical examination. Kabula Kipole (PW3), a medical doctor, tested and confirmed that PW1 was three months pregnant. A medical examination report (Exhibit PI) was tendered to that effect. When the victim was probed on the responsible person for her pregnancy, she mentioned the appellant. PW2 reported the matter to local militia men (Sungusungu) whereas the

appellant, was arrested and arraigned before the Resident Magistrate's Court of Geita and charged with two offences as demonstrated earlier. During trial, Erick William Bagambi (PW4), a teacher at Katoro Secondary School, told the trial court that PW1 was a form three student at Katoro Secondary School and that she was enrolled on 10/01/2017. A register book and attendance register were tendered as exhibits P2 and P3 respectively. On his part, the appellant denied having any relationship with the victim. He stated that, PW2 fabricated the case against him as a revenge since he owed her T7S. 650,000/= being a profit earned from the business for selling wax fabrics (vitenge) which they had and agreed to share. After a full trial, the appellant was convicted as charged and sentenced to serve thirty years' imprisonment for every count, the sentences running concurrently. As alluded to above, the first appellate court found the second count of impregnating a school girl proved, hence, sustained a sentence of thirty years' imprisonment which was imposed by the lower court. In his effort to vindicate his innocence, the appellant filed before the Court two memoranda of appeal predicated on eighteen (18) grounds of complaint. Basically, the appellant's grounds of complaint centred on five points which are as follows: -

i) Propriety of the sentence imposed; ii) Credibility of the prosecution witnesses and reliability of the documents which were tendered by the prosecution; iii) Failure to call material witnesses; iv) Failure to consider the appellant's defence; and v) That, the case was not proved beyond reasonable doubt. When the appeal was called on for hearing, the appellant appeared in person, unrepresented; whereas, Mr. Robert Magige, a learned Senior State Attorney represented the respondent Republic. Being invited to submit in support of his grounds of appeal, the appellant prayed the Republic to respond on his grounds of appeal first, while he reserved his right to rejoin. Submitting on the issue of credibility of witnesses which was covered in the 2n d ' 3rd , 4th , 5th and 7th grounds in the supplementary memorandum of appeal, Mr. Magige submitted that, PW1 was a credible witness as she narrated on how she was enticed by the appellant until they became lovers. He went on submitting that, PW1 mentioned the appellant at the earliest stage when she was interrogated by her mother. Further that, PW l's testimony was corroborated by PW2, PW3, and PW4. It was Mr. Magige's further submission that, from all the witnesses, there was no any contradiction in their testimonies. To bolster his stance, he

referred us to the case of Selemani Makumba v. Republic (Criminal Appeal 94 of 1999) [2006] TZCA 96 (21 August 2006; TanzLII). Responding on the complaint in ground 6 in the supplementary memorandum of appeal and ground 7 of the memorandum of appeal, that material witnesses were not summoned, the learned Senior State Attorney contended that, it was PW1 and PW3 who were relevant to prove the charge. It was his stance that, even without the evidence of other prosecution witnesses, the testimony of the victim was enough. In regard to the 1s t ground of appeal in the memorandum of appeal, that the DNA test was necessary to prove the charge, it was Mr. Magige's contention that, the DNA test was not necessary under the given circumstances where PW1 mentioned the appellant to be the one responsible for her pregnancy. Responding to the complaint that the appellant's defence was not considered as he complained in ground 6 in the memorandum of appeal, it was Mr. Magige's submission that this complaint is unfounded as the appellant's defence was considered by the lower courts. He referred the Court at page 51 and 95 of the record of appeal, where it was indicated that, the decision was reached after considering both parties' evidence. Responding to the complaint that, the case was not proved beyond reasonable doubt as it appears in the 10th ground in a memorandum of

appeal, it was the learned State Attorney's submission that, this complaint is misconceived as the case was proved to the required standard. In regard to the propriety of the sentence as complained in the 1s t and 5th grounds of appeal in a supplementary memorandum of appeal, Mr. Magige at the outset conceded to this complaint. He submitted that, the trial Magistrate before sentencing the appellant, had to consider the mitigation factors by the appellant, and that the appellant was a first offender as well as the circumstances of the case. It was his contention that, if the trial Magistrate was keen to consider the above aspects, the sentence passed ought to be lesser than 30 years. In his rejoinder, it was the appellant's argument that, exhibits P3 and P4 were objected during trial as they did not show if PW1 was a student by the time the offence is said to have been committed. Also, in his efforts to show that PW1 was not a reliable witness, the appellant referred the Court to page 7 of the record of appeal where PW1 introduced herself as Mektlida Simon Lufungulo, a Sukuma by tribe while in the registration book as it appears at page 43 of the record of appeal, it is indicated that the student's name therein is Mektrida Lufungulo Simon, with registration number 4279 a Haya by tribe. Basing on the above inconsistences, it was the appellant's prayer that exhibit P2 ought to be expunged from the record.

It was the appellant's further rejoinder that, PW1 was not a student as she was suspended from school out of disciplinary misconducts. To fortify his submission, he referred the Court to page 25 of the record of appeal, where PW4 testified that, in March 2019, PW1 was suspended for three months. In concluding, the appellant prayed the Court to allow his appeal and set him at liberty. Having heard the parties' submissions and gone through the two memoranda of appeal filed by the appellant, as well as the authorities referred to by the learned Senior State Attorney, we are intending to dispose of the appeal by deliberating on the five points of complaint as crystalized above. Our starting point will be on the appellant's complaint that, prosecution witnesses were not credible and the documents tendered were not reliable to support conviction. It is trite that, the credibility of a witness apart from being a monopoly of the trial court as it is in a good position to assess the demeanor of the witness, the same can also be determined by the appellate courts by assessing the coherence of testimony of a witness in relation of the evidence of other witnesses. See

• Ally s/o Shabani @ Nzige v. Republic (Criminal Appeal No. 12 of

2021. [2024] TZCA 135 (23 February 2024; TanzLII) and Shabani

Haruna @ Dr. Mwagilo v. Republic (Criminal Appeal No. 396 of 2017) [2021] TZCA 708 (1 December 2021; TanzLII). It is also a settled position of the law that, every witness is entitled to credence and must be believed and his testimony accepted unless there are cogent and good reasons to disbelieve the said witness. See - Goodluck Kyando v. Republic (2006) T.LR, 363 and Athanas Ngomai v. Republic (Criminal Appeal 57 of 2018) [2020] TZCA 260 (29 April 2020; TanzLII). In this appeal, the appellant faults the concurrent findings of the lower courts that, the prosecution witnesses were credible witnesses. On our part, we agree with the appellant that, the prosecution witnesses were not credible. It was PW l's testimony that, it was on 18th March, 2019 when the appellant's forced her to have sexual intercourse with her although she informed him that she was in unsecured days of her cycle. That, after the said act, it was later revealed that she was pregnant. PW1 stated further that, after the incident, she went to school. PW4, in his testimony, endeavored to establish that PW1 was a student at Katoro Secondary School who was regularly attending to school. However, when he was cross examined by the appellant, PW4 changed his previous testimony

and stated that in March 2019, PW1 was suspended for three months as a punishment although he did not disclose the reason for her suspension. A further contradiction we have noted from the prosecution witnesses, is when PW4 stated that, PW1 was suspended in March, 2019 for three months. However, to our dismay, he tendered the attendance register which shows that in April and May 2019, PW1 was attending classes. More so, PW1 before the trial Magistrate at page 7 of the record, introduced herself as:- "MektHda Simon Lufungulo, 17 years, Sukuma." However, in a registration book (exhibit P2), it is on record that PW4 was testifying as a student known as Mektrida Lufungulo Simon, a Haya and not a Sukuma. We are mindful of the principle that not all contradictions or inconsistencies would affect the merit of the case, except those which go to the root of the case. See - Dickson Elia Nsamba Shapwata v. Republic (Criminal Appeal No. 92 of 2007) [2008] TZCA 17 (30 May 2008; TanzLII). It is however our firm view that, the contradictions pointed above affect the case as they go to the root of the case hence, cast doubt on the credibility of the witnesses. Premised on the above analysis, we find the complaint by the appellant faulting the credibility of

the prosecution witnesses particularly PW1 and PW4 and reliability of exhibits P2 and P3, to have merit. Moving to the second point of the complaint that, the prosecution failed to call material witnesses, it is garnered from the appellant's memoranda of appeal that, the lower courts failed to note that those who claimed to arrest him and the investigator of the case, were important witnesses to testify before the court; on how the appellant was arrested, how the case was investigated, and its outcome. As far as this complaint is concerned, it was stated by the Court in a similar situation in the case of Hemedi Said v. Mohamed Mbilu [1984] T.L.R. 113 which was referred in the case of Mustafa Ebrahim Kassam t/a and Another v. Maro Mwita Maro (Civil Appeal No. 76 of 2019) [2022] TZCA 228 (29 April 2022; TanzLII), where it was stated that: "Where, for undisclosed reasons, a party fails to call a material witness on his side, the court is entitled to draw an adverse inference that if the witness were called, they would have given evidence contrary to his interests." In the appeal at hand, it is on record that, when the charge was read to the appellant, he denied any involvement with the alleged offences. The appellant denied to have any relationship with PW1. 10

However, it was PW l's testimony that, they were lovers and had several sexual encounters at the appellant's home. According to PW1, she used to go at the appellant's residence to the extent that she left her clothes there. That being the case, we believe that PW1 was familiar with the appellant's dwelling. As none of the prosecution's witnesses testified that the appellant was living in an isolated place, where no other people were residing around, it is our firm view that, the prosecution was not only supposed to summon the local militia man who is alleged to have arrested the appellant but also the neighbor(s) of the appellant who were to testify that, indeed they used to see PW1 at the appellant's home or otherwise. It is unfortunate that even the investigator of the case was not called to testify on what he discovered during his investigation, particularly on the relationship between PW1 and the appellant if any, and the report which would reveal whether at the material time, PW1 was a secondary school student or not. Therefore, for the reason stated above, we accordingly draw an adverse inference to the effect that, failure of the prosecution to summon the above-mentioned persons without disclosing any reason, indicates that if those witnesses were to be called, they would have given evidence contrary to the interest of the prosecution. We find this ground meritorious. ai

Next, we will deliberate on the complaint that, the appellant's defence was not considered. It is trite that, an accused person's defence has to be considered as of necessity even if, the end results, the same will be rejected. That, failure to take into account any defence by an accused person will vitiate the conviction. See - George Jonas Lesilwa v. Republic (Criminal Appeal No. 374 of 2020) [2024] TZCA 269 (16 April 2024; TanzLII). In this appeal, it is undeniable that the trial court in its judgment did not consider the appellant's defence. However, it is on record at page 13 of the appellate court's judgment that, the appellant's defence was considered by the first appellate court, whereby after considering it, the court found that the appellant's allegations were fictitious and an afterthought. The reason for his finding was the appellant's failure to cross examine PW2 on his allegations that, they had bad blood occasioned by the money he owed her. Therefore, we find this ground of complaint as being devoid of merit. Finally, in determining the complaint that the lower courts did not consider that the charge was not proved beyond reasonable doubt, this Court when defining the term "beyond reasonable doubt" in Magendo Paul & Another v. Republic [1993] T.L.R. 219 had this to say:

"'For a case to be taken to have been proved beyond reasonable doubt its evidence must be strong against the accused person as to leave a remote possibility in his favour which can easily be dismissed." It is settled that, the duty and standard of the prosecution to prove the case beyond reasonable doubt is universal in all criminal trials and the duty never shifts to the accused. See for instance, Matibya Ng'habi v. Republic (Criminal Appeal No. 651 of 2021) [2024] TZCA 34 (14 February 2024; TanzLII). As we have intimated earlier, the appellant was charged with the offence of impregnating a secondary school girl contrary to section 60A (3) of the Education Act. From the said provision, for the offence of impregnating a school girl to be proved there are two elementsto be proved by the prosecution. One, that a girl (victim) was aprimary or secondary school girl; and two, that, the victim was impregnated by the appellant. Basically, the offence of impregnating a school girl being a result of sexual conduct, it is obvious that, it was PW1 who was the best witness to prove that it was the appellant who impregnated her. In light of our findings in the first ground of complaint, where we found that PW1 and PW4 were not credible and reliable witnesses, this eventually move the 13

Court to hold that, the charge was not proved to the required standard as complained by the appellant. We also find no need to address the remaining grounds of the appeal as it will be an academic exercise. In the upshot, the conviction entered against the appellant is hereby quashed and the sentence meted to the appellant is set aside. We therefore order the appellant's immediate release from prison unless he is lawfully held for other justifiable cause. DATED at MWANZA this 18th day of December, 2024. The Judgment delivered this 19th day of December, 2024 in the presence of the appellant in person and in the absence of the Respondent/Republic, is hereby certified as a true copy of the original. W. B. KOROSSO JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL